Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Stuttgart, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/07/2018
Date
The claimant is a Federal civilian employee of the U.S. Africa Command, Department of the Army (DA), in Stuttgart, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request for living quarters allowance (LQA). We received the claim on March 6, 2017, the agency administrative report (AAR) on May 5, 2017, and the claimant’s comments to the AAR on May 8, 2017. For the reasons discussed herein, the claim is denied.
In October 2010, the claimant began his employment with the U.S. firm Booz Allen Hamilton Inc., duty-stationed in Germany. While working in Germany, the claimant applied for a Federal position with DA. He was offered, and accepted the position after his return to the U.S. and appointed to the position effective November 14, 2016, although determined ineligible for LQA in his tentative job offer letter. The claimant asserts LQA eligibility. He states he was incorrectly considered a “U.S. Hire” in his tentative job offer letter and determined ineligible for LQA because he did not reside in the U.S. for at least one year after completing his overseas contractor position, as stated in the Army in Europe (AER) Regulation 690-500.592.
In a December 12, 2016, letter to U.S. Army Europe (USAREUR) the claimant’s supervisor requested he be granted an exemption to the one year residency requirement in the AER Regulation 690-500.592. In a December 16, 2016, response USAREUR determined the claimant ineligible for LQA under the Department of State Standardized Regulations (DSSR) section 031.11 because he applied for his DA position in Germany while working in Germany, and under DSSR section 031.12b because the claimant returned to the United States on repatriation orders before receiving and accepting his job offers.
The DSSR contain the governing regulations for allowances, differentials, and defraying of official residence expenses in foreign areas. Within the scope of these regulations, the head of an agency may issue further implementing instructions for the guidance of the agency with regard to the granting of and accounting for these payments. Thus, Department of Defense Instruction (DoDI) 1400.25 – V1250 implements the provisions of the DSSR but may not exceed their scope, i.e., extend benefits that are not otherwise permitted under the DSSR. Therefore, an LQA applicant must fully meet the relevant provisions of the DSSR before the supplemental requirements of the DoDI, AER Regulation 690-500.592, or other agency implementing guidance may be applied.
LQA may be granted to employees recruited in the United States, as stated in DSSR section 031.11:
Quarters allowance prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto, the Commonwealth of the Northern Mariana Islands, and the possessions of the United States.
Relative to these criteria, DoDI 1400.25, Volume 1250, defines “U.S. hire” as follows:
A person who resided permanently in the United States, or the Northern Mariana Islands, from the time he or she applied for employment until and including the date he or she accepted a formal offer of employment.
An employee’s status as a “U.S. hire” is thus based on physical residency which connotes physical presence in the United States during the recruitment process rather than maintenance of a physical or legal residence at some place other than where the employee was actually located at that time. Hence, an employee must be physically residing in the U.S. from the time of application until acceptance of a formal job offer. In this case, the claimant was employed by Booz Allen Hamilton, Inc. in Stuttgart, Germany, from October 2010 to April 2016. The claimant applied for his DA position, located in Germany, sometime during the open vacancy announcement period of March 29, 2016 through April 8, 2016. In his response to the agency report, the claimant stated he returned to the United States in May 2016, was interviewed telephonically in June 2016, and flew to Spain for a pre-planned vacation in July 2016. While on vacation, the claimant accepted a tentative job offer. On October 9, 2016, he accepted a firm job offer. Although the claimant maintained a residence in Iowa, he was employed and resided in Germany for portions of the recruitment process and was not physically residing in the United States from the time he applied for employment until and including when he accepted the formal job offer. Therefore, he may not be considered a U.S. hire for LQA purposes under DSSR section 031.11 and implementing regulations of the DoDI.
The claimant also does not meet the eligibility requirements for LQA under DSSR section 031.12. It states, in relevant part, that LQA may be granted to employees recruited outside the United States provided that:
a. the employee’s actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and
b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States, by:
1) the United States Government, including its Armed Forces;
2) a United States firm, organization, or interest;
3) an international organization in which the United States Government participates; or
4) a foreign government
and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States. [Italics added.]
The claimant meets section 031.12a because his presence in Germany is attributable to his employment with the DA. DSSR section 031.12b specifies the conditions under which employees “recruited outside the United States” may be granted LQA. In the claimant’s case, the recruitment process began when he was working for Booz Allen Hamilton in Germany and applied for the position but continued and concluded after he had returned to the United States, where he received and accepted the firm job offer. Thus, upon his return to the United States on repatriation orders, he could no longer be considered to have been recruited outside the United States for purposes of section 031.12b and the employment conditions it describes, which are based on the premise that, prior to appointment, the individual is employed overseas by one of the qualifying entities with return transportation benefits to the United States.
As stated previously, agency implementing guidance is only applied after an LQA applicant fully meets the relevant provisions of the DSSR. Although the claimant provided information attempting to show him “re-establish[ing] residency,” he did not fully meet the requirements in DSSR sections 031.11 and 031.12b. Therefore, we will not apply the relevant parts in AER Regulation 690-500.592 to the claimant’s case.
Throughout the claim, the claimant asserts that he made the decision to accept the position based on erroneous information, despite the fact that his tentative job offer indicated that he was not eligible to receive LQA. However, it is well settled by the courts that a claim may not by granted based on misinformation provided by agency officials. Payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot bar the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990). Therefore, that the claimant decided to accept the position based on being incorrectly considered a “U.S. Hire” does not confer eligibility not otherwise permitted by statute or its implementing regulations.
The statutory and regulatory languages are permissive and give agency heads considerable discretion in determining whether to grant LQAs to agency employees. Wesley L. Goecker, 58 Comp. Gen. 738 (1979). Thus, an agency may withhold LQA payments from an employee when it finds that the circumstances justify such action, and the agency’s action will not be questioned unless it is determined that the agency’s action was arbitrary, capricious, or unreasonable. Under CFR 178.105, the burden is upon the claimant to establish the liability of the United States and the claimant’s right to payment. Joseph P. Carrigan, 60 Comp. Gen. 243, 247 (1981); Wesley L. Goecker, 58 Comp. Gen. 738 (1979). As discussed previously, the claimant has failed to do so. Since an agency decision made in accordance with established regulations, as is evident in the present case, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.